The Hacker's Encyclopedia 1998/hackers_encyclopedia.iso/zines/cud/cud841.txt

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Computer underground Digest    Sun  Jun 2, 1996   Volume 8 : Issue 41
                           ISSN  1004-042X

       Editor: Jim Thomas ([e-mail])
       News Editor: Gordon Meyer ([e-mail])
       Archivist: Brendan Kehoe
       Shadow Master: Stanton McCandlish
       Field Agent Extraordinaire:   David Smith
       Shadow-Archivists: Dan Carosone / Paul Southworth
                          Ralph Sims / Jyrki Kuoppala
                          Ian Dickinson
       Cu Digest Homepage: http://www.soci.niu.edu/~cudigest

CONTENTS, #8.41 (Sun, Jun 2, 1996)

File 1--Response to Lance Rose (in re CuD 8.39)
File 2--It's watermelon season on the Internet, cops alarmed! (fwd)
File 3--Request: DC-ISOC Meeting Location
File 4--Update on CDA, copyright, crypto (5/29/96)
File 5--(Fwd) The Usenet/etc Stonewall over rec.music.white-power vote
File 6--FW: American Reporter v. Reno
File 7--Cu Digest Header Info (unchanged since 7 Apr, 1996)


CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION ApPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.

---------------------------------------------------------------------

Date: 31 May 1996 02:35:14 GMT
From: [e-mail](Keith Graham)
Subject: File 1--Response to Lance Rose (in re CuD 8.39)

Cu Digest <[e-mail]> writes:

>Lance Rose <[e-mail]> writes:

>How deeply are CDA opponents getting lost in the hype?  Check this
>out:  One of their arguments against the CDA is that it wrongly
>seeks to impose the "indecency" standard from television -- a
>"pervasive" medium -- on the supposedly non-"pervasive" Internet.

>[....] Whoa --
>let's circle back to the top now.  Isn't an indecency standard of
>some sort very much in place for television today?  And isn't
>television a hugely popular mass medium, at the very center of U.S.
>and other societies?

Cable TV channels, such as HBO, not to mention the various "Adult"
channels, do not adhere to this standard.  TV is "pervasive" because it is
broadcast and there are TV's in most homes.  BROADCAST TV is also
a scarce resource (in that only so many TV channels can operate
in a given area), so the government has an interest in keeping it
of the highest possible quality.  (Please no comments on their
success or lack thereof.  :-)

Your argument is fundamentally flawed.  TV is scarce and pervasive;
cable eliminates the scarcity, and is so not restricted.  The
Internet eliminates the scarcity and possible the pervasiveness,
and therefore argueably should not be restricted.

On Encryption:

>[....] It is used to hide
>a message right in someone else's face.  [cops and robbers
>"scenario" deleted]

The problem is, discounting the subject of Key Escrow, encryption
is used to keep the operator of the chat system I might want to
use from listening in when I talk to my wife when I'm travelling
on business.  There are lots of people with network sniffers that
have access to my messages; why should I not prevent them from
doing so if it might be even vaguely important?  (For example, the
fact that I'm on the road might be useful if someone wanted to
assault my wife.)  Encryption is, usually, not about cops and robbers.

As to Key Escrow, why should I cripple my encryption system to
allow the government to access my historical communications?  It
is a fact of life that some tools in the law enforcement regime
become outdated due to advances in technology.  Wire taps, in their
pure form, will probably be one of these outdated technologies.  In
exchange, they gain access to lists of sites you connect to;
electronic financial records; online police databases; and secure
police communications between officers and command and control
facilities not to mention DNA analysis and the rest of the advantages
of modern technology.  Overall, the police's capabilities will be
greatly expanding in the near term future; why give them yet another
weapon in the arsonal when it will potentially greatly compromise
American corporate security and citizen's privacy?

>[Copyright]

I'll leave this for a future discussion, but since we're all
going to be coypright holders and publishers, I think the critically
important thing will be for the laws to be reasonable, understandable,
able to be followed, and fair.  (Whatever all of those mean.)  Right
now, copyright law is so out of touch with how the Web (or Usenet
news) works, that we are all probably breaking the law.  I think we
need to make sure that whatever changes are added to the law are
in everyone's best interest; and some of the changes I've seen aren't.

For example, if I "copy" a program to my hard disk, and then run it
by copying it into RAM 50 times, how many copies have I made?  1?
50?  If the program cost $1000, and the answer is 50, then I am liable
for huge civil fines and possibly jail time under criminal "mass copyright
violation/piracy" laws.  But if the answer is 1, then I'm subject to much
smaller fines and no jail time.    Which is, IMO, the intent
of the copyright law.  And what if I copy a program to my hard
disk, but don't ever run it.  Is that a violation of the law?

In the meantime, some big media interests are also trying to increase
the copyright term on existing works by 20 years.  Unless you hold
stock in one of these companies, that just means that it will be
20 more years before you can, say, get free copies of newspaper
articles about WWI online.  (Or use music, photos, art, and stories
from the 1920's as backgrounds and accents to your Web page.)  We
won't mention the cost to church choirs, etc. that aren't in any
way associated with the 'net.  This looks like bad law.

Keith Graham
[e-mail]

------------------------------

Date: Thu, 23 May 1996 20:27:18 -0500
From: Declan McCullagh <[e-mail]>
Subject: File 2--It's watermelon season on the Internet, cops alarmed! (fwd)

[e-mail] (eye WEEKLY)
Newsgroups--eye.news,alt.culture.internet,alt.journalism
Date--22 May 1996 21:09:52 -0400

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
eye WEEKLY                                                May 23, 1996
Toronto's arts newspaper                      .....free every Thursday
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
EYENET                                                          EYENET

                  BE AFRAID! IT'S WATERMELON SEASON!

                                  by
                    K.K. "Fish License" CAMPBELL

Over 20 years ago Monty Python's John Cleese warned citizens about
violent criminals using fresh fruit as weapons. People only sneered.
Today, Cleese has been vindicated with Edmonton's "Fruitabomber."

Someone is blowing up the watermelons of Edmonton.

And the Internet is to blame.

Here's the lead from The Edmonton Sun story of May 17: "The culprit
who blew apart a bus shelter with an explosives-packed watermelon
detonated a second fruit bomb just moments later, city police revealed
yesterday.

"The so-called Fruitabomber has cops fearing a rash of citywide melon-
bombings, and police are asking markets to keep an eye peeled for
young men buying large pieces of fruit."

Sun reporter Steve Tilley says the police warn this could just be the
"beginning of a reign of exploding fruit terror."

The Edmonton cops are "convinced" the Fruitabomber learned his Molotov
Melon craft from the net. They don't reveal how they figured that out,
unfortunately. They must read alt.bombs.watermelons.

Then comes the standard crime sheet quote: "We certainly are very
concerned about certain types of information available on the
Internet, because it is so easily accessible to people who have a
computer and that interest level."

And easy access to watermelons, too. Don't forget that.

On May 10, The Calgary Herald reported some 14-year-old moron living
in a shithole Cowtown burb blew off the tip of his left thumb while
fooling around with some explosives. The cops also immediately knew he
got the recipe from the net. (They don't say if he also got the
"gunpowder and carbon dioxide cartridge" from the net, too.)

After being served this shocking story, causing middle-class Moms to
clutch at their pearls, we are treated to unrelated Calgary bomb
facts: on April 29, a parcel bomb exploded at the Calgary Jewish
Centre; there were 14 bomb incidents in 1994, and 32 in 1995; and in
1995, four teens used a "home-made pipe bomb" (as opposed to a Radio
Shack pipe-bomb, I suppose) to blow up a teddy bear. A teddy bear!

On May 11, The Calgary Sun renewed its call for net.cops: "something"
has to "be done" to the net.

David Jones ([e-mail]), president of Electronic Frontier Canada,
Canada's cyber-rights watchdog, is familiar with such press antics.

"For some reason, reporters didn't call anyone at the Calgary high
school near the explosions, where principal Del Hack says model
rockets are used as a demonstration in science class," Jones told
eyeNet. "It's easier to blame the Internet."

Jones finds it particularly ironic to see these Champions of Child
Morality scratching their scalps in bewilderment at just what could
make teens want to make things explode. The powerful minds of the
press corps can only conclude it has to be something about the net and
they nod sadly at each other as they call for the cops -- while the
sky above them lights up with Victoria Day rockets and firecrackers.

You can find Jones' editorial comment at
http://www.efc.ca/pages/pr/boom.html . EFC is at http://www.efc.ca .

The EFC site also features the relevant articles from Alberta (using
groovy ol' gopher to store them):

gopher://insight.mcmaster.ca/00/org/efc/media/calgary-herald.10may96
gopher://insight.mcmaster.ca/00/org/efc/media/calgary-sun.11may96
gopher://insight.mcmaster.ca/00/org/efc/media/edmonton-sun.17may96a
gopher://insight.mcmaster.ca/00/org/efc/media/edmonton-sun.17may96b

I made clear my position on this issue in print (May 25 1995 --
http://www.eye.net/News/Eyenet/1995/net0525.htm) as well as on TV.

On May 16 last year, I was on CBC's Face Off and displayed an
explosive recipe exactly like that used in the Oklahoma City bombing.
I had just photocopied it from the Encyclopeadia Brittanica at the
Metro Reference library. For a buck.

eyeNet still embraces the slogan we raised then: "Allan Rock! Regulate
Them Damn Libraries Now!"

First anniversary congrats -- you dopes

The most quoted/republished eyeNet was about the DeathNET website.

It traced step-by-step how The Calgary Sun essentially fabricated a
story about "suicide tips for teens" on the Internet.

This wasn't the "Janet Cooke model" of news fabrication -- a straight
creative-writing-class fantasy (she wrote an about an 8-year-old smack
addict, was given a Pulitzer, then was revealed as a fraud); this
brand of fabrication involves an editor getting a story idea, finding
the story doesn't actually exist (outside his brain), and so scraping
together vaguely related gunk, which he then bundles under a bold
headline screaming his original story idea.

It's supermarket tabloid journalism: papers whose headlines are always
better than the actual stories.

In the case of the DeathNET fabrication, it was picked up around the
world as truth, making DeathNET webmaster John Hofsess a victim of
shithole net journalism.

The DeathNET story ran May 11, 1995
(http://www.eye.net/News/Eyenet/1995/net0511.htm).

To celebrate the anniversary of that story, on May 11, 1996, The
Calgary Sun wrote an editorial calling, again, for censorship. The
reason last time was the evil net was helping teens snuff themselves;
now the evil net is helping teens blow themselves up.

Blow themselves up real good.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Retransmit freely in cyberspace        Author holds standard copyright
http://www.eye.net/eye                          Mailing list available
eyeNET archive --------------> http://www.eye.net/News/Eyenet
[e-mail]          "...Break the Gutenberg Lock..."     416-971-8421

------------------------------

Date: Fri, 17 May 1996 01:57:40 -0400
From: [e-mail](Russ Haynal)
Subject: File 3--Request: DC-ISOC Meeting Location

Greetings from the DC Chapter of the Internet Society.
( http://www.dcisoc.org )

We have held several very successful events during our first 1.5 years. Our
meetings have been attended by hundreds of people from industry,
government and the academic sectors.  These meetings have also featured top
speakers, covered timely topics, and have always been free and open to the
public.

We are looking forward to expanding our activities to help support the
Internet's successful growth, but we require your assistance.

Specifically, the DC chapter of the Internet Society (DCISOC) needs one or
more meeting sites for future events.

Requirements/preferences include:

  seating for several hundred people
  convenient to major highways
  convenient/free parking
  Metro access
  quality projection equipment and facilities
  Internet access
  no charge for use by non-profit organizations
  ability to reliably reserve room several months in advance
  etc.

Organizations offering meeting facilities would contribute to
the Washington, DC Internet community and industry, and would
host meeting(s) addressing local/regional/national/international
Internet issues.

If you know of any appropriate meeting locations (with a point of contact)
please reply to Ross Stapleton-Gray at [e-mail],
(ie. do not reply to this message)

Thanks in advance,

Russ Haynal
(DC-ISOC Membership/treasurer)

------------------------------

Date: Wed, 29 May 1996 20:31:51 -0700 (PDT)
From: Declan McCullagh <[e-mail]>
Subject: File 4--Update on CDA, copyright, crypto (5/29/96)

ON THE CDA:

Folks involved in the case expect a decision within the next week from the
Philadelphia three-judge panel hearing our challenge to the CDA. The DoJ
has a few weeks to appeal to the Supreme Court if they lose.

  -------------------------------------------------------

ON COPYRIGHT:

Regarding the online copyright legislation, there's plenty of action on
the Hill -- and contrary to what I thought a week ago, there's even a
fighting chance that this bill will happen this year.

So far, full Senate judiciary and the House judiciary intellectual
property subcommittee have held hearings.

The House has taken the lead here, and the tentative date for the
subcommittee markup of HR2441 is June 5. (It was to have been last week,
but was cancelled at the last minute when no agreement was reached.)

The Senate seems to be waiting to see what the House does before making
any sudden moves. General feeling is that the legislation was on a fast
schedule but has been slowed down considerably because of ongoing
controvery over OSP liability and (especially) section 1201.

The big snarl is over 1201, and some alliances of convenience are breaking
down. More to the point, libraries are finally mobilizing grassroots
opposition.

Brock has a piece about this in last week's Muckraker on HotWired.

  -----------------------------------------------------------

ON CRYPTO:

The National Research Council's report on crypto policy will be unveiled
tomorrow at the National Press Club at 1 pm in Washington, DC. I'm going
to try my best to be there.

From their web page at <http://www2.nas.edu/cstbweb/>:

   The Computer Science and Telecommunications Board (CSTB) of the
   National Research Council (NRC) has completed a congressionally
   mandated study of national cryptography policy. The final report,
   Cryptography's Role in Securing the Information Society, will be
   released to the public on May 30, 1996 at a public briefing. A large
   number of the authoring committee members will attend.

Thanks to John Young for this pointer to the original September 1994
announcement of the NRC National Cryptography Project at:

   http://www.wpi.edu/~ryant/ncp.html

------------------------------

Date: Thu, 30 May 1996 19:06:11 GMT
From: tallpaul <[e-mail]>
Subject: File 5--(Fwd) The Usenet/etc Stonewall over rec.music.white-power vote

The post below was originally sent privately to Mike Handler (the vote
taker for "rec.music.white-power") and to David Lawrence of
USENET.uunet on May 21. Almost simultaneously, Michael Handler
announced that the vote on RMW-P was finished and had been sent to
David Lawrence where he anticipated it would be "posted shortly."

My original intent was to give people a week or so to respond in
detail, preferably by finishing the vote counting and posting the
results, basis for the results, and voters in the proper USENET/uunet
form.

That week has gone by and this has not happened.

Worse, the vote results have still not been posted. Most votes are
counted, tabulated, explained and posted within two or three days after
the voting is over. The vote counting for RMW-P took over two months,
and the results are still not posted even though a week has passed.

In short, the stonewall over RMW-P continues.

The process has taken so long, another proposal on nazi-ism has come up
for discussion and is approaching the period when another CALL FOR
VOTES could be published.

People have a right to know why Dave Lawrence and others have delayed
the announcement. People have the right to have Lawrence and others
follow the fundamental procedures they established.

And now people should demand to know why the stonewall occurred and to
have access to the all of the data/discussions on the Unix Volunteer
Votetaker discussion lists, by UVV forces, and by all others involved
in any way with the RMW-P vote in the post-vote period.

--tallpaul (Paul Kneisel)

                             *     *     *

[e-mail]
Subject--On the delay over "rec.music.white-power"
[e-mail](tallpaul)
[e-mail]
X-PipeUser--tallpaul
X-PipeHub--nyc.pipeline.com
X-PipeGCOS--(tallpaul)
X-Mailer--Pipeline v3.5.0

Dear David and Michael,

I am writing to you concerning issues raised in several hundred
posts to the USENET new group "news.groups" concerning the lack
of information on the vote for the creation of the news group
"rec.music.white-power". As you know it has been over two months
since the vote deadline and little to no information has been
formally posted from either of you.

The background to the RMW-P proposal was explicitly political on
the part of the cybernazis. Before they submitted the initial
REQUEST FOR DISCUSSION (RFD) to create the group they had
elsewhere announced their intention to move off of the "alt"
USENET hierarchy into the more respectable news groups.

The political background was further demonstrated when they
published their original RFD to their STORMFRONT-L discussion
list.

Both of these actions struck me as the normal course of events.
Any political group (regardless where on the political spectrum
it resides) naturally tends to propagate their ideas.

You are, I believe, aware that I played a major role in urging
people to vote against the creation of RMW-P. Opposition to the
group's creation was divided into two factions. One, exemplified
by people like R. Graves, opposed the group on technical USENET
grounds and disclaimed any political opposition to RMW-P. The
other group of which I was a member openly opposed a political
organizing effort with a political counter effort.

These various efforts naturally produced a large voter turnout,
even leaving aside the possibility of forged votes from any side
(or any lone nut seeming to support one side or another.) The
various organizing efforts also produced considerable
controversy, as is to be expected in any political organizing
effort. Issues like the Joe Fraud spam to inappropriate
discussion lists like "CHOCOLATE LOVERS," and the confusion over
the nature/identity of Mr. Fraud naturally increased the
controversy.

Under such circumstances, it seemed reasonable to me that you
would make a *special* effort to avoid any sense of impropriety
that could be interpreted as supporting either side.  "Net loons"
like Gruborsey already widely post libelous material about both
secret and open cabals that somehow control the internet in
general and USENET/uunet in particular. It is likely that other
individual "loons" seeming to reflect the views of either Kleim,
Graves, or myself would have come forward under any
circumstances. But, had the normal proprieties been adhered to in
the post-vote period the *vast* majority of net users would, I am
sure, have dismissed all of the complaints as openly cranky.

The need for strict adherence to regular USENET announcement
procedures was also heightened by the recent strong more-than-
appearance issue of massive vote fraud around the creation of the
Kashmir news group. The failure to follow normal procedure and
openly post the names of the people who voted in the Kashmiri
RESULTS announcement further heightened concerns all around.

But instead of making the *special* effort to avoid the
appearance of any impropriety, you have stepped back, and moved
away from even the past normal (and technologically obsolete)
procedures.

Normal results of the vote on the creation of new groups seem to
be posted within two or three days after the vote deadline
passes. I think most people involved in the RMW-P discussion,
regardless of faction, knew that the vote turnout would be
unusually large.

You could have, after two or three days, formally posted messages
to this effect on "news.groups" and elsewhere, letting people
know that the formal results announcement would be delayed.

You did not.

You could have made routine posts to "news.groups" about your
activities concerning the delayed result announcement.

You did not.

All of these things strike me as normal procedure in handling
unusual administrative problems, whether occurring on the net or
off. In particular, extra efforts could have been made before the
vote deadline to facilitate vote counting. After all, when one
house catches on fire the local engine company responds; when an
entire city block catches on fire the local engine company calls
for reinforcements. It does not try to fight the fire alone.

As you know I do not like cybernazi Milton Kleim. On this 50th
anniversary of the international war crimes tribunal I would
cheerfully observe Kleim hanging from a gallows (after all of his
legal rights under the war crimes laws were observed.) Should,
though I can't imagine why in this space/time continuum it would
occur, I ended up shaking hands with Kleim I would immediately
count my fingers afterward. But I can recognize that Kleim has a
certain human/animalistic quality. By this I mean that when
sleepy he tends to sleep, when hungry he tends to eat, and when
proposing a news group he wants to see the vote results. His
concern over the vote results thus has a certain reasonable
character to it.

So does the concern of the others who have posted material to
"news.groups" about the delay in the vote results.

In effect you have ignored the concerns in the hundreds of posts
presented to "news.groups" about RMW-P after the vote deadline
passed. These concerns have also occurred in people who have not
generally posted their concerns there. I have received a large
number of messages via e-mail from people who voted against RMW-P
and who were also concerned about the vote delay. I counselled
patience on their part and suggested that they not post any
additional material to "news.groups". But pressure on me was at
times considerable. As we move into the third post-vote deadline
month this pressure has increased. So, I think, has the concern
of many other net citizens.

It was once said that "Caesar can do whatever he wants but
Caesar's wife must be beyond reproach."

The informal "leakage" of information on the vote from the
proverbial informal but "usually reliable sources" does not help.
We first heard that some 10,000 votes were cast, then that the
vote was close to a record-breaker, and finally that it broke the
record by a factor of roughly two. But this information was not
official. If inaccurate it will only increase the controversy
when accurate information is posted. If accurate it will only
increase the controversy about the refusal for so long to provide
official information. And indeed, if inaccurate will nonetheless
be taken as accurate by many and thus feed the already
controversial speculation about vote fraud. In a sense, the long
delay has moved some people from unreasonable speculation on the
post-vote process to speculation that is very reasonable.

Chief among the data here is Kleim's post citing the e-message he
received from M. Handler the vote taker on April 16 that the vote
had been virtually completed and would likely be sent off that
night. (M. Kleim to "news.groups," May 1, 01:35.)

Most reasonable people would, I believe, conclude that Kleim lies
routinely on political matters, as I think R. Graves and others
have documented. But Kleim is not the proverbial Cretin of
Philosophy 101 logic lectures who *always* lies. I do not believe
that Kleim lied in this matter nor invented/forged the post he
cites.

Consequently, the delay in the vote announcement coupled with the
long formal refusal to respond to complaints, can only greatly
exacerbate the various concerns and controversy I mentioned
above.

Indeed, the long official refusal to announce the vote results,
announce reasons for the delay, or even respond to the post vote
complaints threatens to do severe, perhaps even irreparable
damage to a vote procedure long overdue for rehaul and to parts
of the internet in general.

I believe that all of the net citizens are due an explanation of
what happened with the vote and what the vote takers have been
doing during their period of long silence. I believe the
explanation is, in fact, long overdue. The more-than-two-month
period of official silence has created a controversy that will
never die regardless of how detailed the explanation. The silence
has, rather only increased the need for a far greater, more
detailed explanation for the period of silence.

Falling such an immediate explanation, I believe the controversy
will only increase to the detriment of the internet, the
"news.group" creation process, and uunet.

Sincerely,

[e-mail] (Paul Kneisel)

------------------------------

Date: Tue,  4 Jun 96 21:25:32 PDT
From: Jonathan Blumen <[e-mail]>
Subject: File 6--FW: American Reporter v. Reno

---------------Original Message---------------

   American Reporter v. Reno -- The Final Arguments

            The Importance of SLAC Value

NEW YORK (June 3)--The dark skies opened up and poured down on the
city as the lawyers for the American Reporter v. Reno met for the
final arguments in the massive federal courtroom on Pearl Street.
Although the proceedings fell flat in the shadow of a high-energy
finale in Philadelphia a few weeks prior, this parallel summation
had its moments--some enlightening, others interesting, and others
comic.

There were perhaps twenty or thirty people in the courtroom watching
as Randall Boe, the lawyer for the plantiff, battled it out with
government attorney William Hoffman. Boe began by stressing that
since there are no real ways to comply with the safe harbor
defenses, the CDA constiutes a flat ban on speech that is
constitutionally protected for adults. He argued that the definition
of indecency sweeps far too broadly, including works of merit such
as Joyce's Ulysses and Miller's Tropic of Cancer.

Judges Cabranes and Cote both asked Boe if he would concede the
statue's constitutionality with regards to commercial providers,
suggesting that they might decide to uphold just a part of the
statute.  Boe responded that he didn't know if this was possible,
saying that the intentions of the government seemed to be clear--"to
eliminate all indecent material from the Net".

Boe then pointed out that the government tried to calm fears by
saying it would prosecute only those who "intend to shock or
offend".  This does not offer much consolation, he argued, as
artists ply their trade with the explicit intention of shocking or
offending--"it is a part of the creative process.  That is why," he
said "indecency has always been upheld by the First Amendment."

Judge Cote said that with regards to the tagging system proposed by
Olsen, "the government is asking us to make a leap of faith into the
future, by accepting this defense today."  Boe responded that most
people don't look to the possibilty of being acquitted, but the
possibility of prosecution.  And with no clear defense that actually
works, he argued, there will be a huge chilling effect as people
purge their servers.  Boe continually hammered home the point that
tagging pages today does nothing.

He also discussed the problem of judging indecency according to
local communnity standards and declared that under this law a
national standard will indeed develop--based on the lowest common
denominator, the most restrictive community.

Hoffman started with an argument that was heard in Philadelphia--the
plantiff is overreacting.  "The number of items for which the
government would prosecute which would cause a constitutional
challenge is small." He argued that the context of these items is
important.  He also addressed Boe's assertion that the government
did not have a compelling interest, saying that these indecent
materials are easily accessible.  "Children can get it.  They can be
surprised by it."

Cabranes was intent on having terms defined.  He asked if "patently
offensive" meant "indecent"; he wanted to know if "indecent" was the
same as "harmful to minors"; he asked if "sexully explicit" was
equivalent to "patently offensive."  Hoffman danced around with
answers that could be translated as "sort of."

Boe then got up for his final encore and raised the point that even
the expensive, most effective means of determining age--credit card
and Adult ID systems--are useless in the huge and largely ignored
realms of the Internet such as Usenet and IRC.  He then touched upon
the fact that pejoratively labelling one's speech may not even be
constitutional, reiterated that tagging systems do not even work
today, and concluded that there is no way for an average user to
avoid prosecution.

"The bottom line," he said, "is that it starts as a total ban for
indecent communications between adults.  Then there are no real
defenses provided."

Not long after Hoffman started into his final arguments Cabranes
stopped him to ask him, "With the possible exception of email, there
is no way to be 100% sure that indecent material does not get to
people under 18?" Hoffman added something about limited membership
email lists, obliquely conceding the point.

Cabranes asked directly if the statute minus the defenses was
unconstitutional.  Hoffman danced around then admitted that "given
the current state of technology it would be hard to argue that it's
not a total ban."

Cabranes followed, "The question is whether the affirmative defenses
can save the statute". Hoffman answered with something about the
Supreme Court's decisions concerning telephones and how this was
"not unprecedented".

Hoffman's argument was periodically distracted by a small,
distincive click, echoing throughout the massive hall.  On the back
bench by the doors sat a large, bearded guard, slowly, deliberately
trimming his nails.  He clipped away and Chris Hansen, lawyer for
the ACLU, finally turned his head and increduously whispered, "is he
clipping his fingers or his toes?" Hoffman was not distracted, but
talked about the government being compelled to action... *click*
... The guard was looking down into his hands, oblivious to the
important and high-minded arguments in front of him.  And then
Hoffman was finished.

In his deep, raspy voice Cabranes then called Fred Cherry, who had
attended every day of the hearings in hopes of consolidating his
case.  The chief judge looked at a paper and pronounced Cherry's
name again.  Someone leaned over the seats and tapped Cherry.  He
awoke, arose, gathered his plastic bags and umbrella and, wearing
his overcoat, approached the bench.
 He walked straight to the microphone and rested his belongings at
his feet.  Cherry started his hurried talk about how he "despised
the ACLU" and what he was there to discuss "goes all the way back 30
years."  He cited "rule 54 B--'B'as in 'Benjamin'".

Cabranes finally interrupted to determine that Cherry did in fact
want to consolidate his case.  Both parties agreed and that was
that.

"Can I give a little evidence here?" Cherry asked.  He came
prepared, with lots of arguments and stacks of evidence.

"Not a little evidence," Cabranes responded.  "Just a few comments."

Cherry offered a document into the record then referred to an email
message that was presented on the first day of testimony that
involved his comments.  It was pulled from the "alt.christnet"
newsgroup and said something about "fags" and "jesus".  Cherry
wanted to set the record straight and said he was going way back,
back to an early message posted by another that was titled, "What
Size Is Christ". He then lauched into a story about Christ,
appearing 900 feet tall, as compared to another one which was
supposedly 500 feet tall.

The nail clipping had disappeared and all that could be heard was a
strange, involved fiction, transparently suggesting Christ's penis
size and lewd acts of fellatio with the Lord and Orel Roberts.  Some
were shaking with laughter; one lawyer at the plantiff's table
turned his chair and removed his glasses, wiping tears from his
eyes.  Fred Cherry, the "connoi-ssewer of porn", summed up his
evidence and thanked the judges for the time to speak.

It was not clear whether Cherry intended to shock or offend. All at
once, it seemed all too apparent that it didn't matter--such speech
would be found indecent under the CDA, even though it does have
serious literary, artistic, or comedic value.



Mark Mangan
[e-mail]
co-author,
Sex, Laws, and Cyberspace  (Henry Holt, 1996)
http://www.spectacle.org/freespch

------------------------------

Date: Thu, 21 Mar 1996 22:51:01 CST
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Subject: File 7--Cu Digest Header Info (unchanged since 7 Apr, 1996)

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